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Court Wins

Board Incorrectly Applied Presumption of Soundness When Denying Service Connection for Respiratory Disability Other Than Pneumonia

Bradley Hennings

April 9, 2019

Updated: November 20, 2023

Court Win - Service Connection hypertension

Factual and Procedural History

The Veteran entered the United States Army in 1971.  His entrance examination did not note any respiratory problems.  However, from mid-July to the end of August 1971, he was hospitalized after a week of “wheezing and rattling in his chest”.  Upon clinical discharge, he was diagnosed with bronchial asthma and bronchiectasis, both having existed prior to service, and acute left upper lobe pneumonia, which had resolved.  Two weeks later, the Veteran was found medically unfit for further duty and separated from military service.  His separation examination noted that he might continue to have “significant bronchiectasis” in the upper lobe of his left lung that could be a trigger for repeated pneumonic episodes.

In 2007, the Veteran applied for service-connected compensation for his respiratory conditions.  In the years preceding his claim, the Veteran experienced wheezing, shortness of breath, coughing, and painful respiration.  He attended a VA examination in 2008 in which the examiner found evidence of rhonchi (i.e. rattling in lungs), wheezing, and shortness of breath on exertion, but did not offer an etiological opinion for these problems.  As a result, the Regional Office denied service connection for pneumonia, bronchial asthma, and bronchiectasis.  The Veteran then initiated an appeal to the Board of Veterans’ Appeals.  In 2012, the Board issued the first of many remand orders to obtain medical evidence it deemed necessary.  Specifically, the Board requested a medical opinion to determine the identity of his current respiratory conditions and whether any were caused or aggravated by service.  That August, the examiner diagnosed the Veteran with recurrent pneumonia and, although finding that it preexisted service, opined that the condition increased in disability during service.  The examiner also diagnosed the Veteran with bronchial asthma and bronchiectasis, but stated that those conditions preexisted service and were less likely than not aggravated by service.

From there, the Board granted service connection for recurrent pneumonia, but remanded the Veteran’s service connection claim for respiratory conditions other than pneumonia because the examiner did not specify whether an absence of aggravation was shown by clear and unmistakable evidence.  During this time, an additional medical opinion diagnosed the Veteran with bilateral parenchymal disease.  In a subsequent 2017 VA medical opinion, the examiner was asked to address whether the Veteran’s bilateral parenchymal disease was related to service or aggravated by his service-connected pneumonia and provide rationale for the findings.  Here, the examiner found that his bilateral parenchymal disease was less likely than not caused or aggravated by service or his service-connected pneumonia.  Based on these conclusions, the Board denied the Veteran’s claims and the following appeal ensued.

CCK appeals to the CAVC

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service-connected compensation for a respiratory disability other than recurrent pneumonia, for which the Veteran is already service-connected.  CCK argued that the Board erred by failing to determine whether his bronchial asthma and bronchiectasis were aggravated by service based on the clear and unmistakable evidence standard required by law when addressing the presumption of soundness.  Further, CCK asserted that the Board failed to explain how the 2017 VA medical opinion was adequate with respect to this and other relevant medical questions, such as whether his service-connected pneumonia caused or aggravated his bilateral parenchymal disease.

Court remands Veteran’s case back to the Board

CCK argued and the Court agreed that the Board failed to properly apply the second prong of the presumption of soundness.  Specifically, the Board did not recognize the clear and unmistakable evidence standard, and relied on the absence of evidence showing aggravation.  The Court noted that CCK’s challenge to the Board’s aggravation analysis is not simply a disagreement with the weight of the evidence.  Rather, it is an allegation of a legal error, which requires remand to rectify.  Additionally, the Court found that it is unclear whether the 2017 medical examiner used the proper standards, so remand was required for the Board to determine whether the medical opinion was adequate.

To read the Court’s full decision, click here.

About the Author

Bio photo of Bradley Hennings

Bradley Hennings joined Chisholm Chisholm & Kilpatrick as an attorney in January 2018 and currently serves as a Partner in the firm. His practice focuses on the U.S. Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims.

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